US surveillance imperils global free expression, rights group says

The United States has set a dangerous precedent with its pervasive surveillance apparatus and risks undermining global Internet freedom, Human Rights Watch said on Tuesday in the group’s annual world report, pressing the U.S. and other states that engage in mass surveillance and espionage to “commit to transparent and public review of their practices and laws.”

Since former intelligence contractor Edward Snowden leaked that the National Security Agency (NSA) was collecting domestic communications in bulk and monitoring the personal calls and emails of world leaders, including heads of countries allied with the U.S., rights groups have called on the U.S. to be more transparent about its mass surveillance, and to extend privacy protections to foreign citizens.

“The U.S. now leads in ability for global data capture, but other nations and actors are likely to catch up,” Human Rights Watch said. “In the end, there will be no safe haven if privacy is seen as a strictly domestic issue, subject to many carve-outs and lax or nonexistent oversight.”

As the birthplace of the Internet, and given that most global Internet traffic runs through its territory or companies, the U.S. has a unique responsibility to safeguard freedom of expression on the Internet, the report said.

If the U.S. cannot guarantee freedom of expression for the world's Internet users, it may inadvertently affect what Internet experts have termed the "Balkanization" of the Internet — a system where a country tries to bring its entire online infrastructure within its borders. Brazil, a victim of NSA data collection, has already called for the user data of its citizens on sites such as Facebook to be store domestically.

"An Internet that is violated by national sovereignty and territories is not going to have the same promise in opening free expression as a global Internet," Dinah PoKempner, a legal expert with HRW, told Al Jazeera. Of principle concern, should the global Internet splinter, is that oppressive governments would have greater control over how they censor their own version of the Internet.

In a long-awaited speech on Friday, President Obama acknowledged many of those global demands, as well as his country’s unique responsibility – even as tech experts suspect many industrialized nations, including China and Russia, are attempting similar mass surveillance.

“No one expects China to have an open debate about their surveillance programs, or Russia to take the privacy concerns of citizens into account,” the president said. “But let us remember that we are held to a different standard precisely because we have been at the forefront in defending personal privacy and human dignity.”  

In addition to proposed changes to the way the U.S. performs bulk collection of domestic phone meta-data, the president announced a vague extension of privacy safeguards to non-U.S. persons whose communications may be under NSA surveillance. He also said that leaders of U.S. allies would no longer be targeted, but stopped short of listing the countries or leaders that were now off limits.

Obama set an important precedent by acknowledging the privacy rights of non-U.S. persons, said PoKempner. “But the speech didn’t offer foreigners who live abroad anything in the way of concrete protection, certainly nothing they could invoke in a U.S. court,” she said.

If the U.S. will continue its mass surveillance programs, which Obama and other U.S. intelligence officials have described as essential to national security, PoKempner said a global convention akin to those protecting prisoners of war is in order.

“If a state captures a prisoner on the battlefield, that state has a responsibility not to torture. We’re suggesting there’s a similar duty to privacy. When you have the ability to monitor communications, your view of privacy rights must change as well.”

There have already been a handful of diplomatic initiatives aimed at protecting the privacy rights of global Internet users, including a resolution adopted by the U.N. General Assembly in November.

But that resolution, introduced by Brazilian President Dilma Rousseff after she learned that the NSA had intercepted her personal communications, is non-binding. International agreements like the U.N. resolution carry moral weight and little more.

That lack of enforceability is the fundamental flaw in any conceivable resolution to police mass surveillance, analysts say. Getting countries to admit to as yet undisclosed surveillance – a prerequisite for agreeing to curb the practice – would effectively defeat the purpose of espionage.

NSA surveillance programs were the only ones exposed by the Snowden leaks, but most countries engage in mass surveillance of their own population in some form, said James Lewis, a senior fellow with the Strategic Technologies Program at the Center for Strategic and International Studies. As Obama noted on Friday, even some countries “who feign surprise over the Snowden disclosures” are themselves guilty of similar practices.

“It’s standard practice, and the U.S. committing hari-kari won’t change that,” Lewis said. “You can get countries to agree on warfare and torture, but you can’t get them to agree on international law for espionage. It’s a sovereign privilege.”

Instead, Lewis suggested that Obama’s approach – establishing broadly-defined "rules" for mass surveillance without eliminating the practice altogether – could be the most pragmatic.

"There's a very long list of people who do mass surveillance and none of them have stood up and said they're gong to renounce it," Lewis said. "This is a fair balance."

But PoKempner said the U.S. must hold itself to a higher standard if international law cannot prevent mass surveillance from expanding unchecked. U.S. policy, at least, will reverberate across the globe.

"The global dimension to Internet freedom is imperiled," she added. "The law must rise to the challenge."